R. v. Patel, 2015 MBPC 29

R. v. Patel Citation No. 2015 MBPC 29 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Robert Gosman for the Federal Crown and Deanna Sahulka ) for the Provincial Crown - and – ) ) Sunil Ravindra Patel ) Eric Wach, for the Accused ) ) Judgment delivered: ) June 16, 2015 ROLSTON, P.J. Introduction [ 1 ] Sunil Patel comes before the court for sentencing regarding two sets of charges for which he plead guilty. Despite very limited prior criminal involvement, Mr.

Patel’s offences before the court include trafficking as a mid-level courier in cocaine and committing a very serious assault against a man in his home. [ 2 ] Collectively, the Federal and Provincial Crowns are seeking what they call “a significant sentence” of 9 years less time served, on the basis that such a sentence accounts for all relevant sentencing factors and does not take the sentence outside of a permissible range for these offences. [ 3 ] Mr.

Patel has argued that a global sentence of 5½ years less time already served is a fit sentence based upon the principles of rehabilitation and restraint for this 35 year old man who has not served a jail sentence in the past. [ 4 ] While counsel agree as to the principles and relevant case law to be considered in determining sentence, the application of these principles to the facts of this case are in contest, particularly in regards to impact of the principle of totality. [ 5 ] Counsel agree that the proper approach to sentencing Mr.

Patel is by the imposition of consecutive sentences as between the drug offence and the aggravated assault, with the breaches resulting in concurrent sentences to the aggravated assault. [ 6 ] This being the case, it is incumbent upon the court to determine the appropriate sentence for each consecutive offence, and then determine whether the cumulative sentence is excessive in the circumstances. If the sentence is excessive upon a last look, the sentence must be adjusted accordingly. Background of Mr. Patel [ 7 ] Mr.

Patel’s family emigrated from India to The Pas, Manitoba in 1980, a time when they were the only East Indian family in town. As a result, Mr. Patel grew up in an environment of racial intolerance, until the family moved to southern Ontario when Mr. Patel was in his teens. It was there that Mr. Patel thrived personally. However due to economic circumstances, the family returned to The Pas when Mr. Patel was in his late teens. Determined to not become the subject of racism, Mr. Patel adopted a strong social persona in The Pas marked by marijuana use, drinking and partying. [ 8 ] By 2001, Mr.

Patel was mired in this lifestyle when he was caught at this time with 8 grams of marijuana. This resulted in his one and only criminal conviction, a simple possession of marijuana for which he received a suspended sentence and probation. [ 9 ] In 2008, the Patel family moved to Winnipeg. Mr. Patel proved to be adept at transforming his outgoing social nature to marketing and fundraising using the internet. In one instance, Mr. Patel was able to raise significant sums for Cancer Care, and donated his own pay of just over $1,500 to Cancer Care as a personal donation. [ 10 ] Unfortunately, Mr.

Patel’s social lifestyle and ongoing addictions continually brought him into contact with the criminal element, and dragged him into a hole he could not escape from. Having graduated from marijuana use to cocaine addiction, Mr. Patel could not afford to finance his addiction. In May 2012, he agreed to act as a courier of cocaine in Northern Manitoba. Possession for the purpose of trafficking May 31, 2012

[ 11 ] On May 31, 2012 the RCMP in Thompson received information that Mr. Patel was going to Paint Lake Provincial Park to pick up cocaine for sale in Thompson. The information detailed the vehicle and time that Mr. Patel would be attending and as a result surveillance was undertaken by the police. Mr. Patel was seen attending on

schedule in the vehicle described, and stayed at the park for only a few minutes. The vehicle was pulled over as it embarked on a route towards Thompson. While others were in the vehicle, it was Mr. Patel who was found with a brick of cocaine at his feet. A further 14 bricks were located in the trunk of the vehicle. A total of 31 ounces were located in the vehicle by police, which if sold in Thompson at the time was valued at a range of $66,000 to $250,000 depending on how it was sold. [ 12 ] Mr. Patel admitted that he was solely responsible for the cocaine to the police when he was arrested. [ 13 ] Mr.

Patel served three days in custody before being released (for which he is entitled to a credit of 1.5:1 for a total of 5 days). [ 14 ] The offence before the court is an indictable proceeding. Both the Crown and defence agree that Mr. Patel’s involvement is as a multi-ounce courier as defined by R . v. Rocha 2009 MBCA 26 , which warrants a sentence of between 3 – 6 years. [ 15 ] The Crown’s position regarding this offence is that Mr. Patel should be sentenced to 4 years. The Crown argues that Mr.

Rocha, a mid-level courier of 20 ounces, who had no criminal record but who was found guilty after trial received 4 years. According to the Crown Mr. Patel is in a similar position, having one somewhat dated but similar offence and possessing more cocaine but pleading guilty at an earlier stage in proceedings. Therefore the Crown argues that a 4 year sentence is appropriate for this offence. [ 16 ] Mr. Patel argues that the trafficking offence warrants a 3 year sentence on the basis that Mr.

Patel has high prospects for rehabilitation and on the basis of that, this Accused should fall at the low end of the appropriate scale for this offence. Mr. Patel has cited two further cases in support of this; R. v. Calanza 2010 MBQB 240 and R. v. G.T. 2012 MBQB 135 . [ 17 ] I have considered the principles of sentences set out in

section 718 of the Criminal Code as well as in

section 10 of the CDSA . As acknowledged by counsel at the outset, sentences in the trafficking of hard drugs call out for a sentence that emphasizes deterrence and denunciation. [ 18 ] Our Court of Appeal in R . v. Rider 2013 MBQB 116 has stated the following in this regard: Trafficking in cocaine is a serious crime. Its victims are legion: addicts, their families, casualties of violent and property crimes related to cocaine, and ultimately taxpayers who pay for the human and social carnage that the avarice of traffickers produces.

Denunciation and deterrence are the primary objectives for sentences for commercial trafficking in cocaine. (See paragraph 19 – 21) . [ 19 ] In this case, Mr. Patel was transporting a large amount of this serious drug to a northern location of our Province, where it would have no doubt been sold at a premium price. This is a significant aggravating feature in this case. [ 20 ] On the mitigating side, Mr. Patel appears to have only been involved on this one occasion and his involvement was due to his own addictions.

At 35 years old, with his limited record and entrepreneurial abilities, he has potential to rehabilitate. [ 21 ] The Rocha decision sets out the range of appropriate sentences for the offending behaviour in question. G.T. and Calanza assist in focusing on what factors allow the court to sentence an offender to the low end of the range. That is to say, the low end is reserved for those offenders that are youthful, first time offenders, that remain employed or rehabilitate while on bail without re-involvement. [ 22 ] Mr. Patel did get re-involved in a significant way.

This is at least in part due to his inability to remain sober from drugs and alcohol. While he may be motivated now to get help, he did not seek help in the intervening time while he was on bail. If he had done so, perhaps the offences of December 14, 2014 would not have happened. Mr. Patel is therefore not entitled to the low end of the range. [ 23 ] Mr. Patel’s offending behaviour is very close to that of Mr. Rocha. While there are some differences, in my view, the mitigating and aggravating factors balance out. The appropriate sentence in light of the principle of parity is 4 years.

Aggravated Assault and Breaches from December 14, 2014 [ 24 ] Mr. Patel remained on bail from June 4, 2012 until he was arrested again on December 18, 2014. [ 25 ] On December 14, 2014, contrary to the abstain and curfew conditions of his release, Mr. Patel was drinking and doing cocaine with a friend named Mr. Murphy. Mr. Murphy was in the midst of a heated argument over money with his business partner, Mr. Koutras. Mr. Patel and Mr. Koutras had no prior relationship but were known to each other. Mr. Murphy and Mr. Koutras’ argument took place over electronic communication while Mr. Patel and Mr.

Murphy continued to drink. Mr. Patel became involved and words were exchanged suggesting that there would be a confrontation. [ 26 ] At 3:30 a.m., Mr. Patel knocked on Mr. Koutras’ door. Mr. Koutras answered and Mr. Patel set upon Mr. Koutras while armed with a wrench. In a senseless and brutal attack, Mr. Patel struck Mr. Koutras about the head and body resulting in an “orbital blowout” fracture, nasal fracture and cuts to his face. Mr. Koutras was diagnosed as suffering from a concussion and broken nasal bones. A photograph filed as exhibit S-4 depicts the badly beaten face of Mr.

Koutras. [ 27 ] Eventually, Mr. Koutras’ girlfriend awoke and intervened as Mr. Patel yelled, “I am going to kill you” as he struck Mr. Koutras. Mr. Koutras and his girlfriend were able to eventually get Mr. Patel out of their home. [ 28 ] Mr. Koutras wrote a compelling victim impact statement, in which he stated, “It’s still hard for me to talk about because I felt like I was close to death that night”. Physically, the effects of the beating linger for Mr. Koutras, and emotionally he is haunted from having to clean his own blood from his home. [ 29 ] Mr.

Patel describes that he was under the influence at the time of the incident and that it happened in the “heat of the moment”.

[30] The Crown argues that a 5 year sentence is appropriate for the aggravated assault and 60 days should be imposed concurrentlyfor the breaches. The Crown has likened the circumstances to R. v. Pakoo 2004 MBCA 157, suggesting that while this is not technicallya home invasion, it was an ambush of Mr. Koutras in his home, and is therefore analogous to a home invasion. The Crown suggests thatthe same principles apply and that deterrence and denunciation are paramount considerations. [31] Mr. Patel has presented the court with R. v.

Hogg 2004 MBCA 114, where an offender was sentenced to 4 years for perpetratinga similar assault upon a man in an ambush attack with a club anti-theft device, albeit not in the victim’s own home. Mr. Hogg’s case didfeature significant injuries that were more severe than the present case. [32] The circumstances of this offence are very concerning. Mr. Patel was on a bail at the time of the offence, which included anabstain condition and a curfew, which he ignored. He inserted himself into a dispute that was not his. This was not a “heat of themoment” incident as described by counsel. Mr.

Patel left the place where he was drinking and went to the home of Mr. Koutras. Whileit is clear that Mr. Patel was not thinking clearly on account of his intoxication, his actions were not a reaction in the “heat of themoment”. In fact, the court has struggled to find any rationale for Mr. Patel to have been heated at all, and is left with the conclusionthat this act was a senseless violent beating fueled by alcohol and drugs. [33] In addition, Mr. Koutras was significantly impacted by the incident, at one point believing that he was about to die based uponthreats uttered by Mr.

Patel as he continued the beating. As indicated, the other aggravating factors are that Mr. Patel used a weapon, heassaulted a virtual stranger, and he was on bail at the time. For all of these reasons, Mr. Patel’s actions suggest a high degree of moralculpability for this incident. [34] On the mitigating side, Mr. Patel pleaded guilty at the earliest opportunity. This is significant in this case due to Mr. Koutras’position that he wanted the matter to be over and done. Mr. Patel has a limited criminal record and as indicated, has prospects forrehabilitation. [35] In light of Mr.

Patel’s early guilty plea, and considering the principles of sentencing as set out in

section 718 of the CriminalCode, the appropriate sentence in this case is 4 years on the Aggravated Assault and 30 days for each of the breaches concurrent to thesentence for the Aggravated Assault. Totality [36] It is incumbent upon the court to take one “last look” at the sentence of Mr. Patel to determine whether it is appropriate in thecircumstances. [37] The Supreme Court in R. v.

M. (C.A.) (SCC), [1996] 1 S.C.R. 500 discussed the application of the totalityprinciple by directing courts to ensure that the actions of the offender match their moral culpability in a proportionate way at paragraph42: “In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the"totality principle".

The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences formultiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.” As D. A.

Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56: “The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation tothe offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutivesentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".” Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra, at pp. 44-45: “The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate"just and appropriate".

A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above thenormal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushingsentence" not in keeping with his record and prospects.” [38] In this case, the Crown has argued that the cumulative sentence is not substantially more than what Mr. Patel could getindividually at the higher end of the range for the most serious offence. With respect, while this may be the case, the analysis does notend there.

The court must go on to determine whether for this individual offender, whether bearing in mind his prospects and record, andconsidering his moral culpability the cumulative sentence amounts to a crushing sentence. [39] In my view a sentence of 8 ½ years for Mr. Patel amounts to a crushing sentence in light of the fact that he is being sentenced tojail for the first time and does have prospects for rehabilitation. In that regard, it is noteworthy that he committed the drug offences outof a misplaced need to finance his addictions.

This accords lesser moral culpability than an individual who has acted out of pure greedor on behalf of criminal enterprise. Accordingly, the sentence for the possession for the purpose of trafficking incident of May 31, 2012will be reduced from 4 years to 3 years. On the other hand, as indicated, the aggravated assault offence was committed with a highdegree of moral culpability. Mr. Patel was on bail, ambushed the victim in his home and did not address his addictions problems whenhe had the opportunity.

Accordingly, the 4 year sentence shall not be reduced. [40] At the end of the day, the cumulative appropriate sentence is 7 years less dead time. Counsel declined to advance arguments foran enhanced credit for time served, so each of the 181 days since December 18, 2014 will be counted on a one day credit basis. Mr. Patelwill be granted the equivalent of 5 days for the three days he served after his drug arrest. His total credit then will be 186 days. [41] Therefore the sentence will be as follows:

• Possession for the purpose of trafficking May 31, 2012 – 36 months • Aggravated Assault December 14, 2014 – 42 months plus 6 months time already served (giving credit for one day for every day served) for a total sentence of 48 months, consecutive to the above matter. • Breach of recognizance (possession of a weapon) December 14, 2014 – 60 days concurrent to the above. • Breach of recognizance (curfew) December 14, 2014 – 60 days concurrent to the above. [ 42 ] The items seized by the police on May 31, 2012 shall be forfeited. Pursuant to

section 109 of the Criminal Code , there will be a 10 year weapons prohibition and a DNA order pursuant to

section 487.051 of the Criminal Code , both concurrent on the possession for the purpose of trafficking offence and the aggravated assault. Costs shall be waived with respect to the offence of May 31, 2012, but will be imposed for the incident of December 14, 2014. “ORIGINAL SIGNED BY:” ROLSTON, P.J.